No More Attorney Fees For Establishment Clause Lawsuits

Yesterday, the House of Representatives passed legislation which withdrew awards of attorney fees to plaintiffs who successfully bring suits against a governmental agency for Establishment Clause violations. If I recall correctly, present law allows persons who are successful in their lawsuits for civil rights violations to collect their costs of suit, including attorney fees, for having prosecuted the action. Violations of civil rights covered under the current law included violations of the Establishment Clause.

The reasoning for allowing attorney fees was simple: people who bring actions for violations of civil rights may be deterred from going to court if they have to spend thousands of dollars in attorney fees without any corresponding right to have those attorney fees reimbursed at the close of the case. This was especially true in certain types of civil rights violations where the person bringing the action suffered no direct type of damages as the result of the violation.

This lack of damages can be seen most clearly in an Establishment Clause-type of case like the Mount Soledad Cross case in San Diego where the plaintiff, Mr. Paulsen (if memory serves), suffered no tangible damage or harm from the fact that the cross was erected on public land. Sure, he may not have liked it, but that isn't damage in any traditional sense of the word. By allowing people like Mr. Paulsen to recover their attorney fees and costs of suit, it encourages them (and their enterprising attorneys) to pursue such suits when it would otherwise be economically non-viable to do so.

In theory, this works out fine. The person brings the suit and if she fails, it will mean that she has to bear her own costs and attorney fees. It also serves to help level-out the playing field because the entity that the person was likely to sue would be a better-funded city or state that may be able to wage a war of attrition against the plaintiff forcing her to exhaust her money on endless motions and discovery. By allowing a plaintiff to be certain that, if successful, she can recover such fees and costs, the playing field is leveled (to a certain extent). Still, the fact that the plaintiff only recovers if she wins in the litigation suggests that in the ordinary case, a plaintiff would be less likely to bring a suit and pay the attorney fees and costs associated with such a suit unless the plaintiff was confident of victory. But in reality, the existence of the ACLU (and similar organizations) takes the system out of balance.

The ACLU is an organization that works to prevent violations of people's civil rights. The ACLU is well-funded and is capable of pursuing lawsuits in a way that is outside the financial ability of the ordinary citizen. The ACLU also has a track record of pursuing litigation that fits into its more liberal-minded view of the Establishment Clause -- a view that is not shared by many people in the population. When the ACLU enters into the scene, the situation changes. Instead of the city or state being the better funded of the two parties to the litigation, suddenly the plaintiff is the better funded -- especially against smaller towns and townships which don't have huge budgets set aside for fighting such lawsuits. The result is that many cities or towns have to settle with the ACLU rather than fight the litigation because the governing body of the city or town knows that if it loses (regardless of how remote the chances) it will be on the hook for thousands of dollars in attorney fees that the ACLU attorneys were able to bill for prosecuting the litigation.

This is the problem that the House of Representatives addressed in their legislation. According to "House OKs bill on religious expression" by Jim Abrams, AP:

Backers of the legislation cited cases contesting the use of religious symbols, such as crosses in veterans' cemeteries, the display of the Ten Commandments in public buildings or using public land to host the Boy Scouts, who require participants to declare belief in God.

They said local and state governments, unable to match the financial resources of civil liberties groups such as the American Civil Liberties Union and unwilling to pay costly attorney's fees in losing cases, often accede to demands to remove religious symbols.

"This is an issue of allowing the cases to go to court and not to have the threat or intimidation by the ACLU and their minions to hang over all of these heads," said Rep. John Hostettler (news, bio, voting record), R-Ind., sponsor of the bill.

This is a very difficult proposal. Certainly, the concerns voiced by Rep. Hostettler are real. Yet, it is also true that we want to make sure that "ordinary Americans" are able "to defend their religious freedom against intrusion by government," as Rep. Chet Edwards, D-Texas, noted in his opposition to the change. By removing the right to recover attorney fees, many people who's political views don't agree with the ACLU or other similar civil rights organizations will find that it is much more difficult to bring a lawsuit to protect their religious civil rights if the government does overstep the bounds. It seems appropriate to award successful litigants their attorney fees, but reality shows that such an award actually grants a huge advantage in the litigation to the litigants over smaller communities (which are often the target of these suits).

Perhaps the better course would have been to even the field by requiring the losing party and its attorneys to pay the attorney fees and costs of the city or state if the latter is victorious. It's my recollection that under present law, the award of attorney fees is one-sided. In other words, the plaintiff can collect its attorney fees, but the government that is sued cannot do the same if it prevails in the litigation. Perhaps allowing the government to collect its attorney fees from the plaintiff if the plaintiff loses would cause fewer of these suits to be filed. Also, since the ACLU is the real money party behind the lawsuit and the one that recovers the money in the form of attorney fees if the suit is successful, perhaps it is appropriate to make the ACLU (or other civil rights organization) pay the attorney fees if the suit is unsuccessful.

But shifting the attorney fees awards still won't be enough to take care of the problem as long as courts continue to find that almost any acknowledgement of religion in a public place constitutes an "establishment" prohibited by the Constitution. The courts need to get a more realistic and historically-founded understanding of the Establishment Clause before any real progress can be made in this area.

Regardless, it appears obvious to me that something needs to be done in this area. While the action by the House (which won't become law until it passes the Senate and is signed into law by the President) may not be perfect, it certaintly is a step in the right direction of trying to deal with an area that is simply out of control.